Right Rightss of Women Women in Hindu Hindu Joint oint and and Coparcenery property after 2005 Amendment – Effects of recent Judicial Pronouncements “Of all the evils for which man has made himself responsible, none is so degrading, so shocking or so brutal as his abuse of the better b etter half of humanity; the female sex.”-ahatma !andhi. Introduction 1. The rights and obligations of a Hindu are determined by Hindu Law. Law, as understood by the Hindus Hindus,, is a branch of dharma. dharma. Hindu Law has the most ancient pedigree of any known system system of urisp urisprud rudenc ence. e. !ts ancient ancient frame framewor work k is the law of the "mriti "mrities. es. #harma #harma is an e$pression of wide import and means the aggregate of duties and obligations, which can be religious, moral, social and legal. Hindu system of law has the most ancient pedigree of the known system of law; it is about 6000 years old and passed through various phases. p hases. Originally, the sources came to subserve the needs of pastoral people and now it has come to sub-serve the needs of modern welfare society.The sources, from which knowledge of Hindu Law is to be deri%ed, are
the indices of dharma . !t would be con%enient to classify the %arious sources under the following two heads& 1) Ancient ources ! a) "ruti'(what is heard(. ") "mriti'(what is remembered(. c) #igests and Commentaries d) Custom. 2) #odern ources ! a) Judicial #ecisions ") Legislation Justice and +ood Conscience. c) )*uity, Justice 1) Ancient ources ! a) ruti ! "ruti, literally means that which was heard, this word has taken from the word "#ru$ i.e. to hear. anu has defined defined "ruti as follows& follows& -y #ruti or what was heard from abo%e /from +od0 is meant the %eda. %eda. #ruti or %eda are belie%ed to contain the %ery words of #eity /+od0. !t is the paramount and primary sources of Hindu Law. They are supposed to be the di%ine utterances to be found in the four 2edas, the si$ %edangas and the eighteen 3panishads. They are mostly mostly religiou religiouss in charac character ter and the means means of attain attaining ing true true knowle knowledge dge and oksha or sal%ation. 4our 2edas 2edas are& /i0 5ig%eda /praise of forces of nature0, nature0, /ii0 6a 6aur%eda ur%eda /5ituals /5ituals etc.0, /iii0 /iii0 "am%eda /Prayers0, /i%0 7thar%a%eda /agic, spell and incantation0. "i$ %edangas are& i) The "iksha or orthography ii) The 8alpa or treatises dealing with rituals iii) The 2yakaran or +rammar i$) The Chandas or prosody $) The Jyotish or 7stronomy $i) 9irukta or Le$icon. ") mriti mrities es ! They are utterances and precepts of the 7lmighty, which ha%e been heard and remembered and handed down by the 5ishis /sages0 from generation to generation. The smrities are di%ided di%ided into into Primary Primary and "econdar "econdary y "mrit "mrities ies contain contained ed in #harma #harma "utra "utra /Prose /Prose00 and #harmashastras /Poetry0.
+autama, audhyana, 7pastamba, Harita, 2asistha 2asistha and 2ishnu 2ishnu are thechief #harma "utra writers and anu, 6anya%alkya, 6anya%alkya, rihaspati and 9arada belong to #haramashastra. The e$act number of smrities is not definitely known, but anu "mriti is the earliest one. 7lthough "mrities deal with rules of morality and religion, they are more secular than the "ruties. c) %ommentaries and &igests ! 7fter the "mrities, the ne$t step in the de%elopment of Hindu Law was the composition of a number of commentaries /tika0 and #igests /9ibandha0 based upon the "mrities. The commentaries is to interpret the law as laid down in the "mrities. The writing of a particular "mriti is called commentary while the writing on different smrities is called #igests. There are number of commentaries but main are& 'i) &aya (haga "y imuta$ahana 'ii) #ita*shara "y +i,namsh-ara The The last last of the the comme comment ntar arie iess is by 9anda 9anda Pandi Panditt on the the 2ishnu shnu#h #har arma masu sutr traa calle called d the the 2aiayanti. The commentaries are now considered to be more authoritati%e than the original te$ts themsel%es. d) %ustom ! :hen human being came to li%e in groups, groups, it was but natural that they should, should, for harmonious group life, conform to certain patterns of human beha%iour. !n course of time, a pattern of beha%iour emerged and is called usage or custom. There are three types of custom namely& 'i) .ocal %ustom ! "uch customs belong to some particular locality, "tate or #istrict and they are binding on the inhabitants of such place. 'ii) %lass %ustom ! These customs are of a caste of a sect of the community or of the followers of a particular profession or occupation, such as ag riculture, trade, mechanical art and the like. 'iii) /amily %ustom ! These customs relate to a particular family. Essentials of %ustoms ! a) 7ncient. ") !n%ariable and continuous. c) !t should be certain. d) 5easonable. e) !t should not be immoral. f) ust not be opposed to public policy. g) !t must not be forbidden by any e$press enactment of the legislature. The following are e$amples of customs, which the courts ha%e refused to recognise& a) 7 caste custom, authori;ing a wife to abandon her husband, and marry again without his consent. ") 7 custom permitting a husband to dissol%e his marriage without the consent of the wife by paying a fi$ed sum of money. c) 7 custom in "outh !ndia, according to which a man could marry his daughter
"upreme Court
?. ii) The Transfer of Property 7ct, 1==@. iii) The +uardians and :ards :ards 7ct, 1=AB. i$) The !ndian "uccession 7ct, 1A@?. $) The Child arriage 5estraint 7ct, 1A@A. $i) The "pecial arriage 7ct, 1A?. $ii) The Hindu arriage 7ct, 1A??. $iii) The Hindu inority and +uardianship 7ct, 1A?D. i4) The Hindu "uccession 7ct, 1A?D. 4) The Hindu 7doptions and aintenance 7ct, 1A?D. 4i) Hindu "uccession /7mendment0 7ct, @BB?. c) Euity3 ustice and 6ood %onscience ! !n the absence of any specific law in the "mriti, or in the e%ent of a conflict between the "mritis, the principles of ustice, e*uity and good conscience would be applied. !n other words, what would be most fair and e*uitable in the opinion of the Judge Judge would be done in a partic particula ularr case. case. The "upreme "upreme Court Court has obser%e obser%ed d in !urunath v. &amlabai' in the absence of any clear "hastric te$t, the courts ha%e the authority to decide cases on principles of e*uity, ustice and good conscience. %H77. 7/ HI8&9 .AW "chools of Hindu Law emerged with the emergence e mergence of the era of commentaries and #igests. The commentator put his own glass on the ancient te$ts and his authority ha%ing been recei%ed in one and reected in another part of !ndia. Eriginally Hindu Law was applied to the whole of !ndia but subse*uently it di%ided into two main schools and some sub'schools& 1 itakshara a0 ena enara rass "cho "chool ol b0 ithila "chool c0 aha ahara rast stra ra or om ombay bay "ch "chool ool d0 #ra% #ra%id idaa or adr adras as "ch "choo ooll e0 Pun Punab ab "cho "chool ol 2 #aya aga. . #ita*shara chool ! The itakshara "chool /literally meaning Fa concise work<0 is a running commentary on the code of (a)navalkya, (a)navalkya, written by %i)naneshwar /11th Century0 and pre%ails in all parts of !ndia as a "upreme authority e$cept in 7ssam and engal. ut in some matter itakshara pre%ails e%en in 7ssam and engal as a %ery authority on all *uestions in respect of whic which h #aya #aya baga baga is sile silent nt.. The The ita itaks ksha hara ra is not mere merely ly a runn runnin ing g comme comment ntar ary y on the the
6ana%alkya "mriti but it is also a digest of practically all the leading "mritis, and deals with all titles of Hindu Law. !t may also be noted that the itakshara is the orthodo$ school. The itakshara "chools is di%ided into fi%e sub'schools pre%ailing in different parts of !ndia. These different school ha%e the same fundamental principles and acknowledge the supreme authority of the itaksha itakshara, ra, but differ differ in matter matterss of detail details, s, especi especiall ally y in the matters matters of adoptio adoption n and inheritance. These fi%e sub'schools are namely& 1 :he (enaras chool ! )$cepting in ithila and the Punab, this schools pre%ails in the whole of 9orthern !ndia including Erissa. The main commentaries or authorities of this schools are& %iramitrodaya, %iramitrodaya, *irnayasindhu, +attaka imansa, %ivada %ivada andava, andava, #ubodhiniand #ubodhini and alam-hatti alam-hatti.. 2 #ithila chool ! This school pre%ails in Tirhoot and 9orth ihar. The traditional boundaries of ithila are in the 9orth, the 9epal order, on the "outh, the +anges, on the east the ri%er 8oshi, and on the west, the ri%er +andak. The main authorities are& %ivada atnakar, %ivada /hintamani, #mriti #ara or #mrityarthasara and adana and adana 0ari)ata. 0ari)ata. ; (om"a (om"ay y or #ahara #aharastr stra a ch choo ooll ! This school pre%ails in almost whole of the "tate of ombay including +uarat, 8arana and the parts where the arathi language is spoken as the local local lang langua uage. ge. The The main main comm comment entar arie iess are& are& %yavhara yavhara ayukha, ayukha, %iramit %iramitrod rodaya, aya, *irnaya *irnaya #indhu, and %ivada andava. andava. < &ra$ida or #adras chool ! This school pre%ails in "outhern !ndia especially in Chennai "tate. The main authorities are& #mriti /handrika, 0arasara adhaviya, #araswati %ilasa and %ai)ayanti. 5 =un,a" chool ! This school pre%ails in )ast Punab and chiefly go%erned by customs. The main authorities are& %iramitrodaya %iramitrodaya and 0un)ab 0un )ab customs. customs. The #ayaba #ayabaga ga "choo "chooll whic which h is foll follow owed ed main mainly ly in eng engal al,, is not not a &aya &aya"a "aga ga cho chool ol ! The commentary on any particular code, but is a digest of all the codes and written by )imutavahana in 1@th Century. The #ayabaga is digest on leading "mritis and deals only with partition and inheritance. The #ayabaga or the engal school as it is sometimes called is the reformist school of Hindu Law. This school is considered to be a dissident school of the old enaras "chool and this school propagated enlightened enlightened doctrines doctrines and theories. theories. The #ayabaga #ayabaga "chool is not di%ided into any sub'schools. The authorities of this school are& +ayabaga, are& +ayabaga, +ayatatva, +aya-sangraha, %iramitrodaya and +attaka-/handrika and +attaka-/handrika.. &ifferences "et-een the #ita*shara and the &aya"aga chools ! There two schoolGs of law differ in two main matters& 1 in some matters connected with the oint family system and 2 in the rules of inheritance. !n the itakshara system, the right in the family property is ac*uired by birth, a family is a unit and indi%idual rights are not recognised and females ha%e no rights of succession to family property. This right pass to the male members by sur%i%orship. sur%i%orship. !n #ayabaga system, the property are ac*uired by inheritance or by will. The share of a deceased coparcener goes to his widow where there is no nearer heir. The fundamental points of difference between the itakshara and #ayabhaga "chools of law may be summarised as follows&
Mitakshara
Dayabhaga
10 7s regards Joint Property 5igh 5ightt to prop proper erty ty aris arises es by birt birth h /of /of the the claimant0 hence the son is a co'owner with the fathe atherr in ance ancesstral ral prop proper erty ty.. 7fter fter the comme commenc ncem ement ent of the the Hindu Hindu succ succes essi sion on /7mendment 7ct, @BB?, the daughter of a coparcener is also a coparcener.
5ight to property by death /of the last owner0 hence son has no right to ancestral property during fatherGs lifetime. b0 4ather has absolute power of alienation, and so cannot not claim aim partition or e%e e%en maintenance. c0 The interest of e%ery person would, on his b04ather has a restricted power of alienation, death, death, pass pass by inheri inheritan tance ce to his heirs, heirs, like like and son can claim partition e%en against the widow or daughers. father. c0 The interest of a member of the oint family woul would, d, on his his deat death, h, pass passed ed to the the othe other r members by sur%i%orship. "ection D /I0 of the Hindu "uccession 7ct, as substituted by the Hindu Hindu "ucc "ucces essi sion on /7me /7mendm ndmen entt 7ct, ct, @BB? @BB? abolishes the principle of sur%i%orship. 123s regard 3lienation ember emberss of oint oint family family cannot cannot dispos disposee of 7ny member of oint family may sell or gi%e their shares while undi%ided away his share e%en when undi%ided. ;) As regards Inheritance a0The principle of inheritance is consanguinity a0The principle of inheritance is spiritual /i.e., bloodrelationship0. efficacy /i.e., offering of pindas2. of pindas2. b0 ut cognates are postponed to b0 "ome cognates, like sisterGs sons are agnates. preferred to many agnates. <) As regards Doctrine of Factum Valet 7 fact cannot be altered by hundred te$ts. !t is #octrine of factum of factum valet is fully recognised. recognised to a %ery limited e$tent. esides the above points, the other basis of difference difference between itakshara and +ayabaga arose out of their differences in the meaning of the word 4#apinda4. %H77. 7/ HI8&9 .AW A8& .AW =RI7R :7 :HE HI8&9 9%%EI78 A%:3 15 There are two schools of Hindu Law namely itakshara "chool and #ayabhaga "chool. The #ayabhaga "chool /e%en known as engal "chool of Hindu Law0 pre%ails mostly in engal area, while itakshara "chool pre%ails in the rest parts of !ndia. oth schools differ in two main particulars, namely, the law of inheritance and the oint family system. itakshara school recogni;es two modes of de%olution of property, namely, sur%i%orship and succession. The rules of sur%i%orship applies to the oint family property and the rules of succession applies to property held in absolute se%eralty by the last owner. Howe%er the #ayabhaga school recogni;es only one mode of de%olution and that is succession.
. The ombay school of itakshara itakshara recogni;es recogni;es not only the widow, widow, daughter, daughter, mother, mother, fatherGs mother and fatherGs fatherGs mother as heirs but also sister, fatherGs sister. The law of inheritance by female heirs is not uniform. ales succeeding take the property absolutely, while succeeding females take limited estate in the property. !f a separated Hindu under itakshara dies lea%ing behind a widow and a brother, the widow succeeds to the property as his heir. ut the widow, being a female, does not take the property absolutely. "he is entitled only to the income of the property. "he can neither make a gift of the property nor can she sell, unless there is a legal necessity. )%en after her death, the property will not pass to her heirs, but to the ne$t heir of her husband. 7 oint Hindu family consists of all persons lineally descended from a common ancestor and includes their wi%es and unmarried daughters. Howe%er, a Hindu coparcenary is a much narrower body than the oint family and includes only those persons, who ac*uire by birth an interest in the coparcenary property. They are the sons, grandsons and great grandsons. The cardinal doctrine of itakshara school that property inherited by a Hindu from his father, fatherGs father or fatherGs fatherGs father is ancestral property that means unobstructed heritage as regards his male issues. 7 property inherited by a Hindu from other relations is his separate property. HonGble HonGble "upreme "upreme Court has laid down the incidents incidents of coparceneryi coparceneryin n the case of Hardeo Rai +s ha*untala &e$i and 7rs reported in AIR 200> upreme %ourt 2<> and it is held that, - The incidents of coparcenership under the itakshara law are first, the lineal male descendants of a person up to the third generation, ac*uire on birth ownership in the ancestral properties of such person secondly that such descendants can at any time work out their rights by asking for partition third thirdly ly that till partition each member has got ownership e$tending o%er the entire property conointly with the rest fourthly , that as a result of such coownership the possession and enoyment of the properties is common fifthly , that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and si4thly , that the interest of a deceased member lapses on his death to the sur%i%ors. The most important important of the coparcenary coparcenary is that a female female can not be a coparcener coparcener under itakshara school. )%en a wife, though she is entitled to maintenance out of her husbandGs property, and has to that e$tent an interest in his property, is not her husbandGs coparcener. 7 mother is not a coparcener with her son. There can be no coparcenery in between a mother and a daughter. :hile considering the position of a woman in the family, a reference must also go to the concept of stridhana. !t can be described thus, -a property which was gi%en by the father, mother, husband or by a brother at the time of wedding before the nuptial fire and a gift. "tridhana is the absolute property of a woman and she may dispose of at her pleasure. The position of a female member in the oint Hindu family was minimal in nature. "he had no independant rights and was mostly dependant on the male counterparts of the family. "he had no absolute rights in the oint family much less in the coparcenery, wherein she was not e%en recogni;ed. ut certain enactments in the pre independence era did try to change this poor scenrio and important amongst them are, a :he Hindu Wido-?s Remarriage Act3 1>5 7 Hindu widow can not remarry under the cutomary Hindu Law. ut this enactment brought a radical change in this situation and remo%ed the obstacle in the way of remarriage. This 7ct also
pro%ides that on her remarriage, she will forfeit her right and interest in the estate and the estate would pass to the ne$t heirs of her deceased husband, as if she were dead. This was one of the maor reason for the failure of this . " :he Indian uccession Act3 125 This enactment modified the Hindu Law to some e$tent and "ection ?>, @1 and schedule !!! deals with the :ill e$ecuted by a Hindu and prescribe certain formalities in respect thereto. The pro%isions of this 7ct are made applicable to the -:ills -:ills and codicils made by any Hindu on or after B1.BA.1=>B within the territories of engal and within the original urisdiction of the High Courts of Judicature at adras and ombay. c :he :ransfer of =roperty Act3 1>>2 This 7ct supersedes the customary Hindu Law as to transfer of property. d :he Hindu Inheritance 'Remo$al of &isa"ilities) Act3 12> This 7ct was intended to remo%e the difficulties in the way of a Hindu relating to inheritance and enables him to recei%e share in partition. p artition. e :he Hindu .a- of Inheritance 'Amendment) Act3 12 The 7ct admits the sonGs daughter, the daughterGs daughter, the sister and the sisterGs son as heirs ne$t after fatherGs father and before the fatherGs brother. f :he Hindu Women?s Rights to =roperty Act3 @+III 7/ 1; !t ga%e new rights of inheritance to widows, and strikes at the root of a itakshara coparcenery. !t ga%e better rights to Hindu women in respect of property but ga%e her a limited estate, which is held by her only during her lifetime and it then re%erts back to her husbandGs heirs. "he had no right to dispose of such property. g :he Hindu #arried Women?s Right to eparate Residence and #aintenance Act3 1< This enactment in%ol%ed certain rights in Hindu married woman to claim separate residence and maintenance in gi%en circumstances. These are some of the instances, which show attempts of law makers in the preindependence era to codify the %ast and %i%id Hindu Law. ut these attempts were not enough to recogni;e the rights of the female Hindu in a family. )%en after these enactments a female Hindu had no independent and substantial rights barring few or to say fewer instances pro%ided under the abo%e mentioned codified parts. They had minimal impact in uplifting the basic womenGs right in the family. Post independence era did witness maor o%erhaul in the system. :hile considering the rights of women, a reference to 7rticle 1, 1? and 1D of the Constitution of !ndia is a must and crucial. 7rticle 1 guarantees e*uality before law and e*ual protection of the law. 7rticle 1? prohibits the discrimination on the ground of religion, race, caste, se$ and place of birth. 7rticle 1D as well well guarant guarantees ees e*ualit e*uality y of opportu opportunit nity y and prohib prohibits its discri discrimin minati ation on in matter matterss of employment. "till there was something missing and that came with certain maor enactments. :he Hindu uccession Act3 15 -7n 7ct to amend and codify the law relating to intestate succession among Hindus . This preamble of the present 7ct speaks only of the law relating to intestate succession. The 7ct applies to Hindus and recei%ed the assent of the President on 1>th June 1A?D. The enactment brought some radical changes in the law of succession without abolishing the oint family and the oint family property. !t does not interfere with the special rights of those who are members of itakshara Coparcenery. "ection D of the 7ct recogni;es the rights upon the death of a coparcener of certain of his preferential heirs to claim an interest in the property. )%ery coparcener is held to be entitled to the share upon partiton. 7 wife can not demand partition but if a partition does take place, she is entitled to recei%e share e*ual to that of
her son and can enoy the same separately e%en from her husband. "ection D of the 7ct pro%ided that the de%olution of interest will be by sur%i%orsip. Howe%er it also came with a pro%iso that if such Hindu has left sur%i%ing female relati%e specified in Class ! or a male relati%e specified in that class, who claims through such female relati%e, his interest shall de%ol%e by testamentary or intestate succession and not by sur%i%orship. !t created the theor y of notional partition. . 7s such section D and = of this 7ct ga%e rights to the female relati%e of a Hindu to some e$tent and she was entitled to succeed the interest inthe property. "ection 1 of the 7ct has one of the path breaking pro%ision, pro%ision, whereby the female Hindu was gi%en the absolute absolute ownership ownership in the property ac*uired before or after the commencement of this 7ct. 7ny mo%able or immo%able property ac*uired ac*u ired by b y a female Hindu by inheritance or partition or in lieu of maintenance or by by +ift or by her own skill or in any other manner was included in the scope of this section. The rights of female Hindu were tried to be recogni;ed by this effort. HonGble "upreme Court in the case of + :ulasamma $s esha Reddy reported in AIR 1 upreme %ourt 1<< held that, a Hindu widow is entitled to maintenance out of her deceased husbandGs estate irrespecti%e whether that estate may be in the hands of male issues or coparceners. "he can follow the estate for her right of maintenance, e%en if it is in the hands of third person ha%ing notice of her rights. ut still still it was a long way to go. The 7ct does not recogni;e recogni;e the female female Hindu as a coparcener coparcener nor does it gi%es any right to her to seek partition. partition. Her rights rights were still still limited. limited. "ection @I of the 7ct further put an embargo on the rights of a female Hindu, wherein it is pro%ided that she is not entitled to claim partition in the dwelling house, until the male heirs choose to di%ide their respecti%e shares. "he was gi%en only a right of residence in such dwelling house that too when she is unmarried u nmarried or deserted by her husband or o r is a widow. The enactment did pro%ide certain rights to female Hindu and did recogni;e her role to some e$tent. ut still it did not gi%e the female Hindu the status of coparcener and she was still relying on the male counterparts in the the family. family. :he Hindu uccession '#aharashtra Amendment) Act3 1< '<0 of 1<) 4i%e "tates in !ndia had amended the law relating to coparcenary property. 4our "tates namely aharashtra, 7ndhra Pradesh, Tamil 9adu and 8arnataka conferred upon daughters a birth right in coparcenary property. :he tate amendments of #aharashtra3 Andhra =radesh3 :amil 8adu3 and Barnata*a The language of these amendments is identical. The amendments of Tamil Tamil 9adu, 7ndhra Pradesh and 8arnataka are prospecti%e. The aharashtra 7mendment added to the Principal 7ct /the Hindu "uccession 7ct0 a new Chapter !!7 entitled ("uccession by "ur%i%orship(. #espit #espitee its incorpora incorporatio tion n in a law relati relating ng to succes successio sion n /the /the Hindu Hindu "uccess "uccession ion 7ct0, 7ct0, and refere reference nce to (succe (successi ssion( on( in the title title of the Chapte Chapter, r, the 7mendm 7mendment ent confers confers rights rights upon daughters inter %i%os and deals with matters of property irrespecti%e of death of any person or of succession. 3nder "ection @A7 added by the 7mendment, the daughter of a coparcener shall by birth become a coparcener in her own right in a oint o int Hindu family go%erned by itakshara law, and shall ha%e the same rights and be subect to the same liabilities, as if she would ha%e been a son. !n the e%ent of partition, she shall be allotted the same share as that of the son, and if she is dead at the time of partition, her children will be allotted her share. "he shall hold such property with incidents of coparcenary ownership, and shall be entitled to dispose of it by will. 7daughter marrie married d before before @@.D.1A @@.D.1AA A /the /the date date of operati operation on of the 7ct0 hasbeen hasbeen e$clud e$cluded ed from from these these benefits. 9or are partitions effected before@@.D.1AA b efore@@.D.1AA to be reopened. 7nd partitions effected on
or afte afterr @@.D @@.D.1A .1AA Aand and befo before re 1?.1@ [email protected] .1AA AA,, if not not effe effect cted ed accor accordi ding ng to the the pro% pro%is isio ions ns of the7mendment, shall be rendered null and %oid. 3nder "ection @A, if such daughter ha%ing share in itakshara coparcenary dies lea%ing behind a child or a child of a predeceased child, the share in coparcenary property held by her at the time of her death shall pass by testamentary succession if she has made a will disposing it, else else by intest intestate ate successio succession. n. !f she does does not ha%e these these relati relati%es %es,, the share shall pass by sur%i%orship to other coparceners. The policy of these "tate Legislatures to confer upon daughters the hitherto denied right in coparcenary property has been lauded widely, yet the amendments ha%e been criticised for ambiguous language and interpretational difficulties. #oubts ha%e also been e$pressed regarding their constitutionality, particularly in the e$clusion of daughters married before such amendment came into force. "o this e$clusion of married daughters again became a big hurdle for the female Hindu and still their rights were not fully recogni;ed. :he 1< th Report of the .a- %ommission of India and the Hindu uccession Amendment Act of 2005 The Principal Principal 7ct did not pro%ide pro%ide any independent independent right to the daughter daughter in respect respect of partition and to demand the partiton. The daughter would only be able to get a share in fatherGs shar sharee and and the the same same woul would d aris arisee only only on the the deat death h of her her ance ancest stor or.. This This led led to gend gender er discri discrimin minati ation on and daught daughters ers were were left left out from from enoyi enoying ng the coparc coparcena enary ry proper property ty being being %iolati%e %iolati%e of 7rticle 7rticle 1 and 1? of the Constituti Constitution on of !ndia. 5ealising the dichotomy and gender discrimination, Law Commission of !ndia undertook the study of pro%isions of Hindu Law with regards to the Laws of inheritance and with regards to the rights of daughters. 7n apprehension was also raised that a whole generation of woman contemporary to passage of this important enactment will lose out all their property rights. The Law Commission of !ndia submitted its 1>th report to the +o%ernment of !ndia on ?th ay @BBB and it is in respect of - Property 5ights of :omen Proposed 5eforms under the Hindu Law. !t started with, -#iscrimination against women is so per%asi%e that it sometimes surfaces on a bare perusal of the law made by the legislature itself. This is particularly so in relation to laws go%erning the inheritanceKsuccession of property amongst the members of a Joint Hindu family. !t seems that this discrimination is so deep and systematic that it has placed women at the recei%ing end. 5ecogni;ing this the Law Commission in pursuance of its terms of reference, which, interalia, oblige and empower it to make recommendations for the remo%al of anomalies, ambiguities and ine*ualities in the law, decided to undertake a study of certain pro%isions regarding the property rights of Hindu women under the Hindu "uccession 7ct, 1A?D. The study is aimed at suggesting changes to this 7ct so that women get an e*ual share in the ancestral property. 8eeping this background in mind, the Hindu "uccession 7mendment 7ct, @BB? was enacted to enlarge the rights of a daughter, married and unmarried both and to bring her at par with a son or any male member of a oint Hindu family go%erned by the itakshara law. !t also sought to bring the female line of descent at an e*ual le%el with the male line of descent, incl includi uding ng chil childr dren en of pred predec eceas eased ed daugh daughte terr of pred predec ecea ease sed d daugh daughte terr. y the the way of the the 7mendment 7ct, the daughter of a coparcener has been admitted in coparcenary and after the commencement of the 7mendment 7ct, the daughter is a coparcener in her own right. The daughter now has the same rights and liabilities in the coparcenary property as the son. This means that a daughter along with a son is liable for debts of oint family. The daughter is also
entitled to dispose of her share of the coparcenery property or her interest thereof by way of a will. The statement of obects and reasons for amending the Principal 7ct is as follows C:A:E#E8: 7/ 7(E%: A8& REA78 The Hindu "uccession "uccession 7ct, 7ct, 1A?D has amended and codified codified the law relating relating to intestate succession Hindus and ga%e rights which were till then unkonwn in relation to womenGs property. Howe%er, it does not interfere with the special rights of those who are menbers of Hindu Hindu itaks itakshar haraa coparce coparcenary nary e$cept to pro%id pro%idee rules rules for de%olu de%olutio tion n of the interes interestt of a deceased male in certain cases. The 7ctlays down a uniform and comprehensi%e system of inheritance and applies, inter alia, to persons go%erned pre%iously by the urumakkattayam, 7liyasantana and 9ambudir laws. The 7ct applies to e%ery person who is a Hindu by religion in any of its forms or de%elopments including a 2irashai%a, a Lingayat or a follower of the rahmo, Parathana or 7rya "ama or to any person who is uddhist, Jain or "ikh by religion or to any other person who is not a uslim, Christian, Parsi or Jew by religion. !n the case of a testamentary disposition, this 7ct does not apply and the interest of the deceased is go%erned by the !ndian "uccession 7ct, 1A@?. "ection D of the 7ct deals with de%olution of interest of a male Hindu in coparcenary property and recogni;es the rule of de%olution by sur%i%orship among the menbers of the coparcenary. The retention of the itakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts to. The law by e$clud e$cluding ing the daughte daughterr from from partic participa ipatin ting g in the coparce coparcenary nary ownership ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation negation of her fundamental fundamental right of e*uality guaranteed guaranteed by the Constituti Constitution. on. Ha%ing regard regard to the need of render social ustice to women, the "tates of 7ndhra Pradesh, Tamil 9adu, 8arnataka and aharashtra ha%e made necessary changes in the law gi%ing e*ual right to daughters in Hindu itakshara coparcenary property, The 8erala Legislature has enacted the 8erala Joint Hindu 4amily "ystem /7bolition0 7ct, 1A>?. !t is proposed proposed to remo%e the discrimina discrimination tion as contained contained in section section D of the Hindu "uccession act, 1A?D by gi%ing e*ual rights to daughters in the Hindu itakshara coparcenary property as the sons ha%e. section @I of the 7ct disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied occup ied by oint family until the male heirs choose to di%ide their respecti%e shares therein. !t is also proposed to omit the said section so as to remo%e the disability on female heirs contained in that section. "ection D of the 7mendment 7ct has an o%erriding effect, so far as the partition of a coparce coparcenary nary property property and succes successi sion on of intere interest st of deceas deceased ed member member /male /male or female female00 is concerned. !t also supersedes all customs and usages or "hashtric Law in this regard. The amended amended "ectio "ection n D has an o%erri o%erridin ding g effect effect so far as the consti constitut tution ion of coparcenar coparcenary y is concerned. The basic concept of coparcenary is that only male members of a oint Hindu family can constitute a coparcenary completely e$cluding the female members of the family. This concept concept has not been substa substanti ntially ally modified modified with with the amendm amendment ent of "ectio "ection n D. Howe%er Howe%er,, although the daughter has been included as a coparcener by way of this amendment, the wife, mother and widow are still standing in *ueue for their admission in the coparcenary. Recent udicial =ronouncements and their effects Judicial pronouncements of HonGble "upreme Court and HonGble High Courts are of %ital import importance ance,, as they lay down down the interpre interpretat tation ion of the enactment enactment and the intention intention of the
legisl legislatu ature. re. "ome "ome of the most most import important ant recent recent udici udicial al pronoun pronouncem cement entss are discus discussed sed to ascertain the actual effects of the 7mendment 7ct 7ct of @BB?. HonGble HonGble "upreme "upreme Court in the case of 6anduri Botesh-aramma +s %ha*iri Danadi reported in AIR 2012 % 1 3 held that, -The new "ection D pro%ides for parity of rights in the coparcenary property among male and female members of a oint hindu family on and from "eptem "eptember ber A, @BB?. @BB?. The Legisla Legislatur turee has now confer conferred red substa substanti nti%e %e right right in fa%our fa%our of the daughters. daughters. 7ccording 7ccording to the new "ection "ection D, the daughter of a coparcener becomes a coparcener coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in "ectio "ection n D that that the daughter daughter of the coparcen coparcener er shall shall ha%e same same rights rights and liabil liabiliti ities es in the coparcenary property as she would ha%e been a son is unambiguous and une*ui%ocal. Thus, on and from "eptember A, @BB?, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son. HonGble ombay High Court in the case of #s +aishali atish 6anor*ar Anr +s atish Beshorao Beshorao 6anor*ar 7rs reported in AIR 2012 (om"ay (om"ay 101 !t was held that, !pso facto upon the passing of the 7mendment 7ct in @BB? all the daughters of a coparcener in a coparcenary or a oint H34 do not become coparcener . the daughters who are born after such dates would certainly be coparceners by %irtue of birth, birth, but, for a daughter who was born prior prior to the coming into force of the amendment 7ct she would be a coparcener only upon a de%olution of interest in coparcenary property taking place. 3ntil a coparcener dies and his succession opens and a succession takes place, there is no de%olution of interest and hence no daughter of such coparcener to whom an interest in the coparcenary property would de%ol%e would be entitled to be a coparcener or to ha%e the rights or the liabilities in the coparcenary property along with the son of such coparcener. 7 reading of "ection as a whole would, therefore, show that either the de%olution of legal rights could accrue by opening of a succession on or after A "eptember, @BB? in case of daughter born before A "eptember, @BB? or by birth itself in case of daughter born after A "eptember , @BB?, upon them. Howe%er another bench of HonGble HonGble omabay High Court, in %arious appeals before it, disagrred with the law laid down by the HonGble ombay High Court in the 2aishali +anorkarGs case and referred the matters to a bench of two or more Judges by formulating *uestions of law. HonGble ombay High Court constituted a full bench on the said reference and proceeded to decide the *uestions of law raised in the said matters. HonGble ombay High Court in that case of (adrinarayan han*ar (handari and others +s 7mpra*ash han*ar (handari reported differed ed from from the %iew %iew taken taken by the #i%isi #i%ision on ench ench in 2aishali ishali in 201< 201<'5 '5)) #h. #h. <;< <;< differ +anorkarGs case. !t was obser%ed that, if a daughter born prior to amendment will get right only on the death of her father, it will postpone the conferment of %aluable property rights on crores of daughters, who may also lose e%erything upon the father and other coparceners disposing of the property in the lifetime of father. The legislature did not and could not ha%e intended such e%entuality. The HonGble ombay High Court in handariGs case cited supra obser%ed that, the clause /b0 in amended "ection D was not referred to in +aishali 6anor*ar?s case !t was also obser%ed that, -7 bare perusal of sub section /10 of section D would, thus, clearly show that the legislati%e intent in enacting clause /a0 is prospecti%e prospecti%e i.e. daughter born on or after BAKBAK@BB? will become a coparcener by birth, but the legislati%e intent in enacting clauses /b0 and /c0 is retroacti%e, because rights in the coparcenary property are conferred by clause /b0 on the daughter who was already born before the amendment, and who is ali%e on the date of 7mendment coming into force. Hence, if a daughter of a coparcener had died before BAKBAK@BB?, since she would not ha%e
ac*uired any rights in the coparcenary property, her heirs would ha%e no right in the coparcenary property. "ince section D/10 e$pressely confers right on daughter only on and with effect from the date of coming into force of the 7mendment 7ct, it is not possible to take the %iew being can%assed can%assed by learned learned counsel for the appellants appellants that heirs of such a deceased deceased daughter can also claim benfits of the amendment. :-o conditions necessary for applica"ility of Amended section '1) are! /i0 The daughter of the coparcener /daughter claiming benefit of amended section D0 should be ali%e on the date of amendment coming into force /ii0 The property in *uestion must be a%ailable on the date of the commencement of the 7ct as coparcenary cop arcenary property. HonGble HonGble ombay High Court in this udgment udgment held that, amended "ection "ection D of the Hindu "uccession 7ct is retroacti%e in the nature. HonGble ombay High Court also considered the applicability of the amended pro%ision to daughter born prior to 1>.BD.1A?D and after 1>.BD.1A?D but prior to BA.BA.@BB?. !t was held that, it is imperati%e that the daughter who seeks to e$ercise such a right must herself herself be ali%e at the time when the 7mendment 7mendment 7ct, @BB? was brought brought into force. The Principal 7ct was applicable to all Hindus irrespecti%e of their date of birth, when it came into force. The date of birth was not a criterian for the application of the Principal 7ct. The only re*uirement is that when the 7ct is being sought to be applied, the person concerned must be in e$istence or ali%e. "o, to ensure the rights which are already settled the Parliament has specifically used the word -En and from the commencement of Hindu "uccession /7mendment0 7ct, @BB?. !t was obser%ed obser%ed and laid down that, the 7mendment 7mendment 7ct applies applies to all daughters daughters born prior to BA.BA.@BB? and who are ali%e on the date of commencement of that 7ct i.e. on BA.BA BA.BA.@ .@BB? BB?.. The The case case of copar coparcen cener er who who died died befor beforee BA.BA BA.BA.@ .@BB? BB? woul would d be go%er go%erne ned d by preamended "ection D/10 of the 7ct. !t is only in case of a coparcener on or after BA.BA.@BB? that, the amended "ection D/I0 of the 7ct would apply. The pro%isions of amended "ection D/I0 do not and cannot impligned upon or curtail or restrict the rights of daughters born prior to BA.BA.@BB?. "ub section /10 and /@0 of amended "ection D and sub section /I0 operate in two two different fields. fields. The ratio has pa%ed way wa y to many women, who are aspiring to assert their rights in coparcenery property. !t !t has gi%en a huge relief to the daughters to fight with the discrimination on the ground of gender and the consistent oppression and negation of their fundamental right of e*u ality. :o conclude , - ! raise up my %oice not so ! can shout but so that those without a %oice can be heard, we cannot succeed when half of us are held back. alala 6o 6ousuf;ai usuf;ai A==.I%A:I78 7/ HI8&9 .AW efore the ad%ent of uslims in !ndia, the term GHinduG had no creedal connotation. co nnotation. Then it had a territorial significance but today, it has not. Prior to the codification of some branches of Hindu Law in 1A??'1A?D, Hindu had not been defined. Thus, at the stage of codification we had reached a stage when it was easier to indicate a Hindu negati%ely& a person who was not a uslim, Christian, Parsi or Jew was a Hindu. The term GHinduG is a general term, it denotes all those persons who profess Hindu religion either by birth or by con%ersion to the Hindu faith. Till this day there is no precise definition of the term GHinduG a%ailable either in the statute or in any udicial pronouncement. pronounce ment. ut it is easy to state the %arious categories of persons to whom Hindu Law applies. The persons to whom Hindu Law applies may come in the following three categories& A) 7ny person who is a Hindu, Jain, "ikh or uddhist by religion, i.e. Hindus by religion.
() 7ny person who is born of Hindu parents /when both the parents or one of the parents is a Hindu, Jain, "ikh or uddhist by religion0 i.e. Hindus by birth. %) 7ny person who is not a uslim, Christian, Parsi or Jew and who is not go%erned by any other law. A) Hindu "y Religion ! !n this category two types of persons fall& a) Those who are originally Hindus, Jains, "ikhs or udd hist by religion, and ") Those who are con%erts or recon%erts to Hindu, Jain, "ikhs or uddhist religion. 7ny person who follows Hindu religion in any of its from or de%elopment, either by practising it or by professing it, is a Hindu. Howe%er it is difficult to describe what is Hinduism. -aminarayana ampradaya ! This sampradaya pre%ails in aharastra and +uarat, founded by "haanand /called later "wami 9arayan0 was a brahimin by birth and he was the pupil of 5amanu 5amanu.. The follower follower of this this "ampra "ampraday dayaa were were called called "atsangi "atsangi.. !n (agna - 0urusdas)i v uldas1. a *uestion arose whether the follower of this "ampradaya came with in the per%iew of Hindu or not. Their main argument was that the "waminarayan "ampradaya, being a non'Hindu sect and the temple being also a non'Hindu temple, the Harians had no right to enter it. This "ampradaya is different from Hindu 5eligion. "o the pro%isions of Hindu Law are not applied on this temple. The "upreme Court decided that this "ampradaya is not differ from Hindu 5eligion and the pro%isions are applied on this temple also. %on$erts and Recon$erts to Hinduism ! The ceremonies of a con%ersion con%ersion is prescribed prescribed by the religion to which the con%ersion is sought. The #harmashastra did not prescribe any ceremony for for con%e con%ers rsio ion n to Hind Hindus us 3nde 3nderr Hindu Hindu Law Law, a pers person on does does not not lose lose his his fait faith h by mere mere renunciation of it or by mere professing it or practising it. Thus, if a person, Christian by faith, becomes an admirer of Hinduism, so much so that he starts practising and preaching it, he does not thereby become a Hindu. 7 non Hindu may renounce his religion and become Hindu by con%ersion by any of the following three methods& 1) !f he performs the ceremony of con%ersion prescribed by the caste or community to which he con%erts. 7mong the Hindus, it is only the 7rya "amaists who prescribed a ceremony of con%ersion, known as sudhi. Morarji vs Administrator General, Madras 7n )uropean girl named ena 5enda, con%erted into Hindu through ceremonies, got married with orari. En her death, li%ing behind a lot of property, the *uestion was whether she was Hindu or not. The Court decided that she was Hindu. 2) !f he e$press an intention to become a Hindu and actually li%es as a Hindu and the community or caste into the fold of which he is con%erted, accepts him as a member of that community or caste. Perumal vs Poonuswami 7 Hindu bay named Perumal got married with a Christian girl named 7nnapaam. Their marriage were held by Hindu ceremonies by their wedlock a child was born named Poonuswami. Perumal and 7nnapaamGs relationGs were broken due to some reason so Poonuswami filed a suit through her mother. Perumal argued that the son was illegal as their marriage was illegal due to the Christian girl. The "upreme Court decided that marriage as well as son was legal. Smt. Marthamma vs Moonuswami 7 Christian teacher named arthamma got married with Hindu "tudent, named oonuswami after becoming Christian. Later on oonuswami recon%erted into Hinduism and married with a Hindu girl. arthamma argued that oonuswami is a Christian and their is no pro%ision of
recon%ersion into Hinduism. The Court decided that recon%ersion is possible and marriage is legal one. ; !f he declares that he is a Hindu and li%es as a Hindu Mohandas vs Dewanwan () Hindu "y (irth ! 7 child whose both the parents were Hindu, "ikhs, Jain or uddhists at the time of his birth, is regarded as Hindu. !f one of the parents is Hindu and the other is Jain, "ikh or uddhist, then also the child will be Hindu. !t makes no difference that such child does nor does not profess, practise or ha%e faith in the religion of its parents. !f after the birth, both or one of the parentsthe parentsthe e$ercise e$ercise of parental parental right the child is also con%erted into the religion religion in which the parent or parents ha%e con%erted 56n case of legitimate child this right is on father, and in illegitimate case is on the mother2. 7 person will be Hindu if at the time of his birth one of the parents was Hindu and the child is brought up as a member of the tribe, community, group or family to which Hindu parent belonged at the time of his birth. !f both the parents of a child are not Hindu and the child is brought up as a Hindu, the child will not be Hindu unless become con%erted Hindu. %) Who are not #uslims3 #uslims3 %hristian %hristians3 s3 =arsis =arsis or e-s ! 7ny person who is not a uslims, Christians, Parsis or Jews and who is not go%erned by any other law, is go%erned by Hindu law, unless it is pro%ed that Hindu law is not applicable to such a person 5a) &umar vs arbara72. arbara72. Those persons who are atheists or who belie%es in all faith, or in conglomeration of faiths, may fall under this class. 7 uslim who has renounced his religion and did not adopt any other religion will be considered as Hindu. Applica Applica"ili "ility ty ! !t was the old belief that the Hindu Law applies only to those who are the followers of the rigid orthodo$ traditions of Hindu religion but the case of am hagwan &oer v 8./. 8./. ose9 has settled a rule that a Hindu does not cease to be go%erned by Hindu Law because of the lapse from orthodo$ Hindu practice or by de%iation from its central doctrines. 9nder 9nder the %odified %odified .a- ! "ection @ of the Hindu arriage 7ct 1A??, pro%ides that the 7ct applies to the person listed below /and similar pro%isions are also made in the other enactments of Hindu Law0& 1) 7pplication of 7ct& This 7ct applies& a) to any person who is Hindu by religion in any of its forms of de%elopments, including a %irashaiva, %irashaiva, a :ingayat or a follower of the rahmo, the rahmo, 0rarthana or 3rya or 3rya #ama); ") to any person who is a uddhist, Jaina or "ikh by religion and c) to any other person domiciled in the territories to which this 7ct e$tends, who is not a uslim, Christian, Parsi or Jew by religion, unless it is pro%ed that any such person would not ha%e been go%erned by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this 7ct had not been passed. xplanation< The following persons are indus, uddhists, Jainas or "ikhs by religion, as the case may be& a) any child, legitimate, or illegitimate, both of whose parents are Hindus, uddhists, Jainas or "ikhs by religion ") any child, legitimate, or illegitimate, one of whose parents is a Hindu, uddhist, Jaina or "ikh by religion, and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged and co n%ert or re'con%ert to the Hindu, uddhist, uddh ist, Jaina or "ikh religion. c) any person who is a con%ert 2) 9otwithstanding anything contained in sub'section /10, nothing contained in this 7ct shall apply to the members of any "chedule Tribes within the meaning of clause /@?0 of 7rticle IDD of
the the Cons Consti titu tuti tion, on, unle unlesss the Centra Centrall +o%ern +o%ernmen ment, t, by notif notifica icatio tion n in the Effici Efficial al +a;ett +a;ette, e, otherwise directs. ;) The e$pression (Hindu( in any portion of this 7ct shall be construed as if it included a person who, though not a Hindu by religion is, ne%ertheless, a person to whom this 7ct applies by %irtue of the pro%isions contained in this section. The following persons are Hindus, uddhists, Jain or "ikh by religion& child legitim legitimate ate or illegi illegitim timate ate,, both both of whose whose parents parents are Hindus Hindus,, Jain, Jain, "ikhs "ikhs or 1 7ny child uddhists by religion. 2 7ny child legitimate or illegitimate, one of whose parents is a Hindu, Jain, "ikhs or uddhists by religion and who is brought up as a member of the tribe, community group or family to which such parents /either the father or mother0 belongs or belonged and ; 7ny person who is a con%ert co n%ert or recon%ert to the Hindu, Jain, "ikh or uddhists religion. =erson to -hom Hindu .a- Applies '9ncodified .a-) ! 1 Hindus by birth and also to Hindus by con%ersion in any of its forms or de%elopments including rahmans, 7rya "amaists etc. 2 !llegitimate children whose parents are Hindus. ; !llegitimate children born of a Christian father and a Hindu mother and brought up as Hindus. < uddhists, Jain, "ikhs and 9ambudry rahmans e$cept, so far such law is %aried by custom and to lingayats who are considered as "hudras. 5 "ons of Hindu dancing girls of 9aik caste con%erted to ohammedanism where the sons are taken into the family of Hindu grandparents and are brought up as Hindus. 7 Hindu by birth who ha%ing renounced Hinduism, has re%erted to it after performing the religions rites of e$piation and repentance, or e%en without a formal ritual or re'con%ersion when he was recognised as a Hindu by the community. rahmos and 7rya "amaists, and to "anthals of Chhota 9agpur, and also to "anthals of anbhum e$cept so far as it is not %aried by custom. > 7 Hindu who has made a declaration that he is not Hindu for the purpose of "pecial arriage 7ct 1=>@ and 7 person who is born a Hindu and has not renounced the Hindu religion, does not cease to be a Hindu Hindu mere merely ly becau because se he depar departs ts from from the the stand standar ard d of orth orthodo odo$y $y in matt matter erss of diet diet and ceremonial obser%ances. 7I8: /A#I.D oint oint Hindu /amily /amily ! 7 oint and undi%ided Hindu family is the normal condition of Hindu society. 7 oint Hindu family consists of all persons who are descended descend ed from a common ancestor, and includes their wi%es and unmarried daughters. En marriage, a daughter ceases to be a member of her fatherGs family, and becomes a member of her husbandGs family. Erdinarily an undi%ided Hindu family is oint not only in estate but also in food and worship. Howe%er the e$istence of oint estate is not absolutely necessary to constitute a oint family, and it is possible to ha%e a oint Hindu family which does not own any estate. ut, if oint estate e$ists and the members of that family become separate in estate, the family ceases to be oint. Hindu Hindu %oparcena %oparcenary ry ! 7 Hindu coparcenary is a much narrow body than a oint family. !t includes only persons who ac*uire by birth an interest in the oint or coparcenary property. "uch persons are the sons, grandsons and great grandsons of the holder of the property for the time being. !t includes three generations of males /in unbroken descent0 ne$t to the holder of the property.
efore the Hindu succession /7mendment0 7ct, @BB?, itakshara Coparcenary consisted of only male members and females females were not members of it. Hindu succession succession /7mendment0 /7mendment0 7ct, @BB? has substituted "ection D of the Hindu "uccession 7ct and has made the daughter of a itakshara coparcener, a coparcener in her own right in the same manner as the son and the same rights subects to the same liabilities as that of a son. oint Hindu /amily =roperty or %orarcenary ! 1) Ancestral =roperty ! 7 property which is inherited from a father, fatherGs father or fatherGs fatherGs father. The property can be ac*uired by son, grandson, great grandson and also by a daughter. The property inherited from any person, male or female other than the three immediate ancestors, is not ancestral property. propert y. 2) =roperty ointly Acuired "y the #em"ers of the oint /amily ! :here property has been ac*uired by the members of oint Hindu family by their oint labour either in a business or in profession, with the aid of oint family property it becomes oint'family or coparcenary coparcen ary property. !t was also held by ombay High Court that property ac*uired by the oint labour of the members, e%ern without the aid of oint'family funds, is presumed to be oint family property in absence of any indication of an intention to the contrary. ;) =roperty Acuired -ith the Aid of ointF/amily /unds ! Property ac*uired with the aid and assistance assistance of oint'fami oint'family ly property is also oint. Thus accumulations accumulations of income, income, i.e. rent etc. of the oint' oint'fam family ily property property,, proper property ty purcha purchased sed out of such such income, income, the proceed proceedss of sale sale or mortgage of such property, and property purchased out of such proceeds are also oint'family property. <) =roperty =roperty :hro-n :hro-n into the %ommon %ommon toc* toc* ! !f any member of a oint'Hindu family has %oluntarily put his self'ac*uired property into the oint funds with the intention to abandoning all separate claims to it, would wou ld be oint Hindu'property. eparate eparate or elfFAcuired =roperty =roperty ! Property which is not oint is called separate or self' ac*uired property. 7 Hindu, e%en, he be oint, may possess separate property. He is the sole owner of such separate property and has e$clusi%e possession and ownership o%er it. 1) Property ac*uired by his own e$ertion and not by oint labour with other members. 2) Property inherited from any person other than h is father, grandfather or great grandfather. ;) Property obtained by as a share of partition pro%ided he has no issue. <) Property obtained by gift of ancestral mo%able property made by the father through affection. 5) Property obtained by grant from the +o%ernment. ) arriage gift. :he Hindu 6ains of /earing Act3 1;0 ! Prior to this 7ct, income earned by a member of oint family by the practice of a profession or occupation re*uiring a special training imparted at the e$penses of the oint family property was considered to be oint family property. Rights of %oparceners ! 1) Community of interest and unity of possession. 2) "hare of !ncome. ;) Joint possession and enoyment. <) 5ight to restrain improper acts. 5) 5ight of maintenance and other necessary e$penses. ) 5ight to enforce partition ) 5ight to account >) 5ight to alienation. #anager 'Barta) ! Property belongs to a oint family is ordinarily managed by the father or
another senior male member of the family. 3nder Hindu Law the manager of a oint family is called the 8arta. ut such a senior member may gi%e up his right of management, and a unior male member of the family may be appointed as the 8arta with consent of the other members. ut a minor member of the family cannot be a 8arta in the absence of any maor member, the court may appoint a guardian for the whole of the oint family property. He is not the partner, principal or agent of the family, it is more like that of a trustee. =o-er of the Barta ! 1) Power o%er the income and e$penditure. 2) Power to manage oint'family business. ;) Power to contract debts. <) Power to acknowledge debts. 5) Power to start a new business. ) Power to refer disputes to arbitration. ) Power to compromise. &uties and .ia"ilities of the Barta ! 1) #uty to render accounts 2) #uty to realise debt due to the family ;) #uty to spend reasonably <) #uty not to start a new business without the consent of the coparceners 5) #uty not to alienate coparcenary property without legal necessity or for he benefit of the estate. Alienation of %oparcenary =roperty ! 3nder Hindu Law only the following following persons ha%e the power to alienate the coparcenary property. 1) 7lienation by the manager or 8arta 2) 7lienation with the consent of all the coparceners ;) 7lienation by the father as 8arta <) 7lienation by the sole sur%i%ing coparcener.
